On July 20, 2015, in Remijas v. Neiman Marcus Group, LLC, No. 14-3122 (7th Cir. 2015), the Seventh Circuit held that the United States District Court for the Northern District of Illinois wrongfully dismissed a class action suit brought against Neiman Marcus after hackers stole their customers’ data and debit card information. The District Court originally dismissed the plaintiffs’ claims because they had not alleged sufficient injury to establish standing. The District Court based its ruling on a United States Supreme Court decision, Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138 (2013), which held that to establish Article III standing, an injury must be “concrete, particularized, and actual or imminent.”

However, the Seventh Circuit clarified that Clapper “does not, as the district court thought, foreclose any use whatsoever of future injuries to support Article III standing.” Rather, “injuries associated with resolving fraudulent charges and protecting oneself against future identity theft” are sufficient to confer standing.

In Remijas, the Seventh Circuit explained that there is a reasonable likelihood that the hackers will use the plaintiffs’ information to commit identity theft or credit card fraud. “Why else would hackers break into a store’s database and steal consumers’ private information?” – the Seventh Circuit asked. The Seventh Circuit held that the plaintiffs should not have to wait until the hackers commit these crimes to file suit.

The Seventh Circuit also considered that some of the plaintiffs have already paid for credit monitoring services to protect their data, which it held is a concrete injury. Neiman Marcus also offered one year of credit monitoring services to its customers affected by the breach, which the Seventh Circuit considered an acknowledgment by the company that there was a likelihood that their customers’ information would be used for fraudulent purposes.

Ultimately, this decision may serve to soften the blow dealt by Clapper to data breach plaintiffs. Specifically, based on this ruling, plaintiffs who have not incurred any fraudulent charges, but have purchased credit monitoring services, or have spent time and money protecting themselves against potential fraud may argue that they have standing.

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